D.L. by Friederichs v. Huebner

• Decision Date: 03 February 1983
• Docket Number: No. 81-481,81-481
• Citation: 329 N.W.2d 890,110 Wis.2d 581
• Parties: D.L., a Minor, By his Guardian, L.J. FRIEDERICHS, Plaintiff-Respondent and Cross-Appellant, v. Merlin HUEBNER, Personal Representative of the Estate of Samuel A. Huebner, Deceased, and Integrity Mutual Insurance Company, a Domestic Insurance Corporation, Defendants and Fourth-Party Plaintiff-Appellants, Kenneth Meehl, Defendant and Third-Party Plaintiff and Cross-Respondent, American Family Mutual Insurance Company, Third-Party Defendant, Herman and Ellen Lamers and Cedarburg Mutual Insurance Company, Fourth-Party Defendants.
• Court: Wisconsin Supreme Court

Page 890

329 N.W.2d 890

110 Wis.2d 581

D.L., a Minor, By his Guardian, L.J. FRIEDERICHS Plaintiff-Respondent and Cross-Appellant, v. Merlin HUEBNER, Personal Representative of the Estate of Samuel A. Huebner, Deceased, and Integrity Mutual Insurance Company, a Domestic Insurance Corporation, Defendants and Fourth-Party Plaintiff-Appellants Kenneth Meehl, Defendant and Third-Party Plaintiff and Cross-Respondent American Family Mutual Insurance Company, Third-Party Defendant Herman and Ellen Lamers and Cedarburg Mutual Insurance Company, Fourth-Party Defendants.

No. 81-481.

Supreme Court of Wisconsin.

Argued Dec. 1, 1982.

Decided Feb. 3, 1983.

Joseph M. Troy, Appleton, argued for defendants and fourth-party plaintiffs-appellants; Herrling, Clark, Hartzheim & Siddall, Ltd., Appleton, on brief.

Robert W. Lutz and Derek McDermott, Chilton, argued for plaintiff-respondent and cross-appellant; Bonk, Lutz, Hertel, Burnett & McDermott, Chilton, on brief.

Randall A. Haak, Kaukauna, argued for defendant and third-party plaintiff and cross-respondent; Irving G. Curry III, McCarty, Curry, Wydeven, Peeters & Riester, Kaukauna, on brief.

ABRAHAMSON, Justice.

This is an appeal from a judgment of the circuit court for Calumet county, Hugh F. Nelson, Circuit Judge. The judgment ordered, in relevant part, that the plaintiff David Lamers (D.L. in the caption) recover the sum of $152,113.80 from the defendants Merlin Huebner, personal representative of the estate of Samuel A. Huebner, deceased (hereafter Huebner Implement), and Integrity Mutual Insurance Company (the insurer) and that the cause of action of David Lamers against defendant Kenneth Meehl be dismissed. This court granted direct review of the judgment upon certification from the court of appeals. Secs. 808.05(2), 809.61, Stats. 1979-80. On this appeal the parties dispute several of the circuit court's evidentiary rulings and instructions on the issue of Huebner Implement's liability and the circuit court's refusal to adopt the theory of absolute liability on the issue of Meehl's liability. We affirm the judgment in favor of David Lamers against Huebner Implement. We reverse the judgment dismissing David Lamers's allegations against Meehl and direct that judgment be entered to reflect that Meehl is liable under the doctrine of absolute liability for David Lamers's damages. We remand the cause to the circuit court on the cross-complaints of Huebner Implement and Meehl against each other.

I.

The lawsuit arises out of an injury that David Lamers sustained while working on the Meehl farm. David's hand and part of his arm were amputated by a chopper wagon, also called a forage wagon, manufactured by Huebner Implement.

David Lamers began working on the Meehl farm during the summer of 1975 when he was 12 years old. His father, who had arranged for the employment, also worked part-time for Meehl, as did David's younger brother, Joe. Meehl and David's mother are first cousins. David continued to work for Meehl throughout the school year and the following summer. The accident that gave rise to this lawsuit occurred on August 16, 1976, when David was 13 years old. The accident involved the chopper wagon, a non-gravity type of self-loading forage wagon that Meehl had purchased in 1962 from Samuel Huebner, doing business as Huebner Implement Works. The wagon is a large boxlike structure, approximately 7 feet wide, 16 feet long, and 7 feet deep. An "apron," consisting of revolving chains with slats, is located on the inside floor of the wagon. When the wagon is filled with grain, the apron moves the grain from the back to the front of the wagon where the grain is unloaded to a cross-conveyor and then blown into the silo. The apron moves slowly, about one foot per minute. The controls that operate the wagon are located at the front of the wagon. The power for the wagon is supplied by the power takeoff of a tractor.

The rear end of the wagon consists of a wall that extends to within three inches of the wagon's floor. The three-inch opening between the rear wall and the wagon floor exposes a portion of the wagon's gears and moving parts. A short canvas flap designed to cover the top of the returning aprons as they move toward the front, to prevent grain from leaking out of the wagon, covers the opening. Meehl testified that his wagon had a tendency to leak grain from the opening. A sloped "bevel board"--about five and a half inches wide--extended across the back of the wagon at an angle over the opening.

On the day of the accident, Meehl telephoned David and asked him to come over to help thresh. David got permission from his mother and arrived at the Meehl farm at about one o'clock. The threshing operation--which consists of several procedures, starting in the field--had begun the previous week. On the day of the accident the chopper wagon and other machinery used in the threshing operation were in the barnyard. Meehl was greasing the thresher when David arrived, and David helped finish the greasing. The machinery was put in position for this phase of the threshing operation. David plugged in electric motors which supplied the power to the grain elevator. Meehl started the chopper wagon's operation. Meehl and David were the only people in the barnyard; Meehl was at the front of the wagon where the controls were and lost sight of David after hooking up the power takeoff. In order to speak to Meehl about his next chore, David started walking around the back of the wagon toward Meehl. In the past, while the wagon was operating, Meehl would on occasion send David out of the barnyard to do various chores, such as pick apples, gather wood, or knock down grain in the barn, or David would stand around the machines with Meehl or his father and talk.

As David walked toward Meehl he observed the rear of the wagon and noticed that oats were leaking out of it. Not knowing how the wagon worked and thinking that the canvas was getting caught in the gears and might tear off and jam the wagon, David walked over to the rear of the wagon, reached in under the bevel board and grabbed the canvas to extricate it. He testified that as soon as he grabbed the canvas, one of the angle irons attached to the apron chain "came up and grabbed" his hand. He tried to pull out his hand and started yelling to Meehl to stop the wagon; Meehl did not hear him. David kept trying to pull out his hand, but the iron pulled his fingers and hand inside the wagon. He heard the bone crack and saw his skin tear and finally pulled out his arm. His hand was still inside the wagon. About 15 to 20 seconds elapsed between the time David placed his hand on the canvas and the time he extricated his arm.

After he pulled out his arm, David went around to the front of the wagon. Meehl saw what had happened and turned off the wagon; the two went into the house and called for help. Meehl and an ambulance attendant pried open the back of the wagon with a crowbar to get David's hand, in case it could be reattached.

David filed a suit for damages against Meehl, the estate of Samuel A. Huebner, the manufacturer, and the manufacturer's insurer, Integrity Mutual Insurance. We refer to the defendant manufacturer's estate as Huebner Implement, and in our references to Huebner Implement we include defendant Integrity Mutual. The complaint against Huebner Implement was based on two theories of products liability: strict liability in tort for selling an unreasonably dangerous machine and failing to warn of the machine's danger, and negligence in designing, manufacturing, and selling a machine that failed to provide a guard or safety feature that would prohibit a user from inserting his arm into the area of the sprockets and chains, negligence in failing to warn or give adequate notice of the danger, and negligence in designing the wagon so the board attached to its rear looked like but was not a safety guard.

David's allegations against Meehl were based on the theories that Meehl was negligent in failing to instruct David in the proper manner of operating and working around the chopper wagon and in failing to warn David of the dangers incident to the machine's operation. The complaint also alleged that Meehl was negligent in failing to comply with the Wisconsin child labor laws.

Meehl filed a third-party action against his insurer, American Family Mutual Insurance, and Huebner Implement filed a fourth-party action against David's parents. Neither the third-party nor fourth-party action is in issue on appeal.

The defendants cross-claimed against each other for contribution.

The circuit court submitted 16 special verdict questions to the jury regarding the liability of Meehl, Huebner Implement, Integrity, and David's parents and one special verdict question regarding the liability of Meehl's insurer. ¹ The jury determined that Huebner Implement's causal negligence was 40 percent, Meehl's, 15 percent, David's parents, 5 percent, and David's, 40 percent. After hearing post-verdict motions, the circuit court awarded judgment to David Lamers against Huebner Implement in the amount of $152,113.80, 60 percent of the total amount of the verdict. It dismissed the causes of action against Meehl and David's parents and granted a new trial on Meehl's cause of action against his insurer.

Both Huebner Implement and David Lamers appealed from the judgment, and the court of appeals certified the appeal to this court. Huebner Implement raises four issues for our consideration.

First, Huebner Implement contends that the circuit court erred in admitting evidence of improvements in the safety features of the forage wagons which were manufactured by Huebner Implement after 1962, the date of manufacture of the wagon involved in this case. We hold that the evidence of Huebner Implement's post-1962 remedial measures was admissible on the negligence theory under the impeachment exception in sec. (rule) 904.07, Stats. 1979-80, and on the...